After the War: Aid Workers in Afghanistan, Carter and Gates in South Africa, and an Interview With Ruth Bader Ginsburg

May 3, 2002

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This episode of NOW With Bill Moyers tells the story of Dominic MacSorely of the humanitarian aid agency Concern Worldwide. He was part of the battle to feed the starving people of Afghanistan and fight to make a difference in the rebuilding of a nation. In the second segment, former President Jimmy Carter and Bill Gates, Sr., head of the world’s largest foundation, join forces to throw a spotlight on Africa’s deepening AIDS crisis. And finally, a conversation with Supreme Court Justice Ruth Bader Ginsburg. You can access the original Web page for this program at the archived NOW With Bill Moyers website.

TRANSCRIPT

DOMINIC MACSORLEY (ON PHONE): I’m off tomorrow morning — I get into Islamabad at 2:30 in the morning, followed by a ten-hour drive…

WILLIAM BRANGHAM, NOW PRODUCER: Dominic MacSorley is leaving his home in Dublin, Ireland, bound for Afghanistan. He works for the Irish humanitarian aid group called Concern Worldwide.

MACSORLEY: I’m not actually that used to packing for cold weather. You sort of get conditioned into thinking that all the problems of the world are associated with hot climates, but anyway, quite clearly, they’re not.

BRANGHAM: MacSorley has been turning his life upside down again and again for the last twenty years. Today he’s off to what’s become his real home — the vast global landscape of devastation and despair and need.

His journey begins in this Pakistani refugee camp, where tens of thousands of desperate Afghans are waiting to go home.

MACSORLEY: You can provide them with enough to live on, and enough blankets to keep them warm, but the reality is refugee camps are appalling places. And the longer they stay, the more social problems develop. Nobody has a job here. They’re breeding grounds for fights, violence, marriage break ups, whatever.

They are supposed to be temporary, and they offer a temporary solution. But the real solution for these people is back home.

BRANGHAM: The problem with getting them home is that home has become one of the world’s wastelands.

MACSORLEY: We’re on the road to Zahd Kumar, which used to be held by the Taliban and it’s very close to what was the front line.

MACSORLEY: Afghanistan is one of the poorest countries in the world. Twenty years of civil war, 10 years of Soviet domination seven years of repressive Taliban rule, further compounded by three years of drought

The history of Afghanistan did not start with the bombing of the World Trade Center. The history and the responsibility for the international community began two decades ago.

BRANGHAM: MacSorley and his team are heading to their main base of operations deep in the northeast of Afghanistan. Successive earthquakes and droughts have made this one of the poorest regions in the country.

MACSORLEY: Of all the priorities that we’re currently facing, food is the key at present. And we are running against time in terms of our scheduling to try and get enough food to people who need it. That’s not even prior to winter. We’re already deep into the winter.

There’s a car that’s stuck in the mud. And there’s absolutely no way that we’re gonna be able to pass until they get out. We may not get to where we’re going before nightfall

You can imagine the problems that we have when we’re transporting trucks of food. And we have 11,000 tons of food to distribute in trucks throughout this country over the next two or three weeks. But we better get moving.

One of the things you get asked a lot, “Why do you do this kind of work?” I mean I grew up in Belfast in the ’60s and ’70s. Like many people, my intention was to get out of Belfast and get away from the troubles.

BRANGHAM: What he thought would be a short break from practicing law has become a twenty-year odyssey from one world crisis to the next.

MACSORLEY: And when you start to look back, in essence, what I was trying to escape from in Belfast was a community that was dominated by conflict. And I thought I was escaping to something different. The reality is, I ended up or was even subconsciously attracted to working within similar environments.

BRANGHAM: Back on the road, the afternoon’s rains have now turned to snow. Come morning, MacSorley fears the continuing snow means further delays.

MACSORLEY: I’m not sure we’re gonna be able to get out, you know, the roads aren’t clearly marked. And when the snow falls, the drivers can’t follow the tracks. And you can end up going off into mine fields or whatever. We’ll see. It’s winter time.

BRANGHAM: Navigating Afghanistan’s winter roads is always a challenge. This thirty mile trip will take five hours. But once they arrive in Zahd Kumar, they find hundreds whose journey has been far more arduous.

MACSORLEY: This area has been designated by the UN as acutely food deficit, which means that 80% of the people are in need of food assistance. And this is what’s happening today – people who have been registered in the villages are coming, some of them walking up to 7-10 hours. 680 families today will receive food, which is an essential lifeline to keep these villagers alive.

BRANGHAM: Concern, is a secular organization. They’ve been working steadily in Afghanistan since the earthquakes of 1998. The American bombing forced MacSorley to evacuate his team immediately. Getting them back in would prove to be much harder.

MACSORLEY: It’s rather ironic that the visas that were being issued to the journalists, they were getting them within a matter of hours. Whereas the aid agencies had to queue up and follow the usual procedure which was actually two weeks. It’s a bizarre situation where you have journalists in photographing the acute needs of the population where the aid agencies are sidelined. We needed to be there. We should have been the first people on the plane. And we weren’t.

BRANGHAM: The bombing has ended, but the desperation clearly continues. The fledgling government taking shape in Kabul might as well be millions of miles away – for this is Northern Alliance territory – local warlords dictate the law.

MACSORLEY: Food is currency in Afghanistan. Food is a political item within a country like this. And if much of your food was being diverted to local commanders, to reengage in a war, these are the moral dilemmas that agencies face on a day to day basis.

BRANGHAM: MacSorley told us that in a neighboring region, a local commander seized 30,000 food ration packs for his own people. A nearby refugee camp saw none.

MACSORLEY: The only way an organization can guarantee that their food is not being used politically or militarily is to be there.

COMMANDER ZAHIR (through translator): He says I am Commander Zahir and I am responsible of this area. Concern helped our poor people a lot and I hope that Concern will continue its cooperation in our area.

MACSORLEY: And were many of the houses destroyed by the recent fighting in the last couple of months?

COMMANDER ZAHIR (through translator): About 95 or 90% of the houses were destroyed by the fighting between the Northern Alliance and Taliban.

BRANGHAM: Commander Zahir controls the 23 villages in this region. He’s a veteran of the recent fighting and today he’s come to meet with MacSorley.

MACSORLEY: Maybe we need the Northern Alliance to come to Ireland. We’ve had our own problems, similar to Afghanistan.

COMMANDER ZAHIR (through translator): He says that since the Europeans helped us, so we are ready to help the Europeans.

MACSORLEY: Concern employees are people who are not just there to kind of hand out biscuits. They have to be diplomats. They have to be manipulators. They have to encourage a man or a commander or forces who have been used to killing people, to turn around and say to them, “Can you help us now build up communities and feed the population?” And this is not easy.

COMMANDER ZAHIR (through translator): We are starting our life from zero. And I hope that the Concern will continue the cooperation and their assistance to our people in this area.

MACSORLEY: Ok, then. Thank you.

BRANGHAM: As he leaves, the Commander wants to show MacSorley a bomb crater left over from America’s war on the Taliban.

MACSORLEY: The bombing campaign — it worked. The military strategy was effective. It has now liberated Afghanistan. It has now enabled agencies like Concern to spread their operations out into areas that were completely cut off before.

The fight against terrorism, you know, many people ask you, “Do you support that?” Well, of course, you do. It is a just cause. But, that being said, at the end of the day, poverty and terrorism are so inextricably linked. And an absence of human rights, an absence of health care, an absence of education becomes a breeding ground for the terrorists of tomorrow.

We come from our own history in Ireland of repression, famine, civil conflict. And it is something that is built into the character of the Irish people. And we have developed what I think is a practical approach to how we live our lives within that. What is achievable. You can do a huge amount within any of these communities, be it in Northern Ireland or be it wherever, at grass roots level.

BRANGHAM: Here in Rustaq, there isn’t enough food for everyone who’s hungry. Village elders were asked to identify those people in their own communities with the greatest need. Those families are given ID cards that they’ll then use to get food and supplies.

MACSORLEY: Many of them are unable to read or write, so everybody just stamps their thumb. Just want to make sure we haven’t missed anyone because sometimes people can’t make it because of the weather, but today is a better day and it looks like everybody showed up.

MACSORLEY: It’s absolutely fantastic to see families coming down here to collect very essential items for them to go back and start rebuilding their lives. And this is where satisfaction comes that we’re actually reaching people in need. But we shouldn’t delude ourselves. The people that are coming to these food distribution centers are the people who have the strength to either walk or they have a donkey. There are hundreds and thousands of families who we have not yet seen.

BRANGHAM: Many of these towns along Afghanistan’s Northern border were the front line for the war between the Taliban and the Northern Alliance. Two years of fighting forced most people to abandon their homes.

MACSORLEY: When the fighting ceased two or three months ago, the population came back but largely came back to houses that were destroyed and infrastructure that has been seriously damaged. There are 24 villages, there are probably 5 of 6 thousand houses that have been damaged and become uninhabitable.

BRANGHAM: During the fighting, soldiers stripped these homes of their wooden roofs, doors, and windows. One of Concern’s rebuilding efforts has been transporting new lumber in from Tajikistan.

MACSORLEY: We have, to date, I believe, helped reconstruct over 2000 homes and the aim is to reconstruct 5000 in this area. But as you can see, there’s a huge amount of work to be done. And this is only a, really a snap shot of what has been happening in this country for the last two years, in fact, the — the last 10 years.

BRANGHAM: The villagers are now trickling back home, and the severity of their loss quickly becomes apparent. Many Afghan men have died, leaving countless mothers and children to fend for themselves.

BEBE NANDALUM (through translator): I’m a widow. I don’t have — I don’t have son and I don’t have husband. I am living alone with some of my children.

BRANGHAM: Bebe Nandalum is sixty years old. She lost her husband and eldest son during this past year of war.

BEBE NANDALUM (through translator): There was many, many nights we were sleeping hungry. I have nothing. There is no one to look after me.

BRANGHAM: It’s a story MacSorley and his people have heard all over this region.

MACSORLEY: Mothers are effectively starving themselves so that their children will have a better opportunity. Women were selling off whatever assets they had to ensure that they could purchase food, that is, selling blankets or selling a quilt or selling their goat, in the clear knowledge that these were the very things that they needed to keep them warm through the winter and to keep the family unit together.

BRANGHAM: Life was hard enough for these women before the Taliban came to power. Seven years later, the war is over, and they’re starting new lives. Concern is helping them learn how to make their own living.

MACSORLEY: I notice you don’t make burkhas here — is that because you are expecting women will not be using the burkha in the future?

WOMAN: Actually, in the future, we are trying to have project that provides burkhas.

MACSORLEY: Because you still use the burkha…

WOMAN: Yes, it’s our culture.

YOUNG WOMAN: I don’t like it, if the government lets me, I will take it out.

WOMAN: Many women are not hesitating the burkha. We want permission to work. With burkha, if they allow us to work with burkha, then we are not hesitating.

MACSORLEY: The repression of women has been ingrained, systematic and you will notice that even in areas of the Northeast where the Taliban weren’t working, women are still continuing to use the burkha. And it will take perhaps 10, 20 years. It’s a generational problem. To get women to regain the confidence they need. They have a very clear and a very strong role in the rebuilding of their country.

BRANGHAM: Concern is just one of hundreds of agencies working with the Afghans to rebuild their country. Four and a half billion dollars in aid has been pledged by international donors. Those who work on the ground know that the real challenge is turning the world’s good intentions into the foundation of a new nation.

MACSORLEY: Despite the last 20 years, the people who have survived within Afghanistan have incredibly retained a humanity that you only witness when you actually spend time with them. And I think my experience within Afghanistan has taught me one thing — I have been humbled to a certain extent by the ability of people to retain human values within an extraordinarily inhumane situation.

President Jimmy Carter

MOYERS: On our program last week, we heard the author Herman Gollob sum up the insight of William Shakespeare into human nature as a long-running contest between altruism and egotism.

Both, I know from experience, are the stuff of politics. And no one I know reveals these twin motives more aptly than Jimmy Carter, the 39th President of the United States.

Personal ambition got him to the White House; altruism has kept him busy since he left it 20 years ago.

Jimmy Carter seems as much at home now in the trouble spots of the world, among the weak and powerless, as he does in the counsels of the mighty, or in Plains, Georgia.

Recently, he was back in Africa. He and another model citizen, Bill Gates, Sr., who heads the wealthiest foundation in the world, one dedicated to public health, hoped to throw a spotlight on the deepening AIDS crisis.

Video journalist Jamila Paksima followed their journey.

JAMILA PAKSIMA: I was invited to return to Africa as part of an entourage led by a former president, Jimmy Carter, and an ally, the CEO of the largest foundation in the world, Bill Gates, Sr., father of the richest man in the world.

They are here to take a firsthand look at a continent coping with the worst health calamity on the planet: AIDS.

JIMMY CARTER: If you take all the wars put together in the history of humankind, there has never been such a devastating cost in human life as is resulting from HIV/AIDS.

PAKSIMA: 40 million people in the world have HIV; 70% of them live in Sub-Saharan Africa.

Carter and Gates will visit four African nations and meet with people from every strata of society, even prostitutes.

PAKSIMA: Nigeria is the most populated nation in Africa. An estimated 3.5 million Nigerians are HIV-positive. Ninety percent of them don’t know it because they’ve never been tested.

Nigeria is now taking action, subsidizing treatment of anti-retrovirals at 25 test sites and expanding a prevention program for HIV-positive mothers.

One way HIV has spread fastest in Nigeria, as in so many other countries, is the sex industry.

IRENE (SOCIAL WORKER): Right now, Mabushi here is the center of sex workers in Abuja.

PAKSIMA: More than 5,000 women in the Mabushi slums sell their bodies for money, and estimates are 38% of them are HIV-positive.

The Carters are escorted into Benedict Freeman’s bar.

BENEDICT FREEMAN: Many of the folks here in the village don’t know the secret of HIV/AIDS, but I know it is killing our loved ones, you know? So I like the education to be sharing around to us here. I have introduced selling condoms in my bar.

PAKSIMA: Oh, yeah?

FREEMAN: Do you want me to show you? Okay, come on.

This is Freeman’s entertainment bar, lovers spot. Pleasure men with conscience. We are conscience men here.

PAKSIMA: Twice a week, Benedict opens his bar to an unlikely support group called WHED. WHED’s members are prostitutes.

SALUME: It is because of this organization. I learned that it’s good to use condoms when you want sex. I don’t buy it one. I go for the packets, I buy it in packets, so that any time somebody comes to me, I won’t go out and look for it I will just then pick it from my table there.

CARTER: Have you seen anyone dying of AIDS?

WOMAN: Yes.

STELLA: In my hometown, there are more than 200 people I can mention.

CARTER: Are they persecuted?

IRENE: Yeah, people do run away from them and leave them to suffer.

GROUP: Yes, yes.

GATES: I’m curious how busy are they? How many customers?

WOMAN: I think I have 15 people.

GATES: 15 or ten in a day.

PAKSIMA: The prostitutes charge their customers the equivalent of one dollar for each visit, and in Nigeria, condoms are not free.

CARTER: Did they find that their customers are willing to use a condom?

WOMAN: Yes.

CARTER: All of them?

STELLA: Sunday, last week, a man slapped me, why, because I tell him to use condoms.

CARTER: I would rather have sex with a prostitute that insists on condoms than I would to have sex with one that didn’t care. It shows that they care about themselves and about their customers.

WOMAN: Thank you and God bless you.

CARTER: We should recognize that they have sinned, as have all of us, and they need to be forgiven and they need to be treated as human beings, and given an opportunity for life.

GIRL: We welcome you to Central African Republic. Thank you.

CARTER: Thank you.

PAKSIMA: Another country was added to our schedule at the last minute: the Central African Republic, where four times as many women as men are infected with HIV.

Here in the city of Bangui, more than 200 HIV-positive women have lined up to meet the Gates and Carters.

CARTER: They don’t have any medicine at all. The only thing they can do is to treat… All these people have AIDS, and they just treat them until they’re gone.

PAKSIMA: This is the only AIDS clinic in the country. It is run with money from Japan, one of the most generous nations funding foreign assistance programs in Sub-Saharan Africa. These were the first patients suffering the advanced stages of AIDS the Carters and Gates met on our trip.

ROSLYN CARTER: There’s nothing to do for the baby but just watch it?

TRANSLATER: We have the treatment for related disease for respiratory disease. That’s all we’re doing.

ROSLYN CARTER: So sad.

CARTER: This is inconceivable for human beings to stay aloof from assuming responsibility for addressing this terrible pandemic.

PAKSIMA: I stop to film Rosalyn Carter waving goodbye when I realize the group is leaving without me.

REPORTER IN JEEP: Got it. Grab my hand.

PAKSIMA: We are escorted from the AIDS clinic to the airport by soldiers still armed with grenade launchers after six years of rebel warfare.

PAKSIMA TO CARTER: I have heard you say this is our biggest war. Do you still believe it is true?

CARTER: The United States has been spending in Afghanistan a billion dollars a week on military expenditures. You know, I would like to see one-tenth this much, one-one-hundredth this much spent on combating this much more horrible war in the developing world in AIDS.

PAKSIMA: Kenya, where 700 people die each day of AIDS. Daniel Moi, Kenya’s long-time dictator, was hesitant at first to openly discuss condom usage.

DANIEL MOI, KENYAN LEADER: My appeal to my colleagues within the continent, young and old to know our survival will depend …

PAKSIMA: Today he is determined to see African leaders learn to help themselves.

CARTER: I hope they all hear your voice.

PAKSIMA: Kenya is leading the continent in research to find the AIDS vaccine. The first phase of human trials are now being conducted at Nairobi University Hospital. Sixty percent of the funds for this research come from the Gates Foundation.

DOCTOR: NAIROBI UNIVERSITY HOSPITAL: What we are involved in is a marathon, but we’re Kenyans and we’re great long- distance runners, so we will get there.

PAKSIMA: One in five people in Nairobi are infected by HIV. The government is hoping to turn these numbers around through a widespread voluntary counseling and testing campaign.

Kibera, on Nairobi’s outskirts, is the largest slum in the Sub-Sahara. One million people live in these alleys and shacks.

At the town meeting, organized by community activists, a young man on the panel catches my attention with his soulful poetry.

SIMON WAINYOKE: Brothers and sisters,
Friends and relatives and my loving parents
Lend me your ears and get this message right.
With a broken heart I am asking you,
Please, please be faithful to each other
This monster never sleeps
There is no cure for AIDS.

PAKSIMA: Simon showed me his life in the village of Thika, 45 minutes outside of Nairobi.

SIMON: This is my house. This is my girlfriend, Margaret.

PAKSIMA: Simon lost his uncle and three of his friends to AIDS.

SIMON: This was the first one who passed, this was the next one. That’s why I became a volunteer, so that I can gain knowledge, not to follow my friends, who have already passed. So I can live and educate my friends.

PAKSIMA: So people come to you in the community for free condoms?

SIMON: Yeah, free condoms.

PAKSIMA: Oh, you have it.

SIMON: Yeah, I always carry them.

PAKSIMA: Do they call you the condom man in town?

SIMON: Yeah, they is calling me he who is dealing with condoms.

PAKSIMA: For $2.50 a day, he supports himself and his girlfriend filling up minibuses called matatus. Simon uses his work to drive the AIDS message home.

SIMON: Without using a condom is like to enter in a matatu without knowing where it is driving you to.

STUDENT: Yes, but how can you friend know that a girl has not had that have HIV germs?

SIMON: That is why I am trying to explain you, it is better for you to take a condom.

PAKSIMA: He is always prepared to demonstrate the use of a condom and answer the simple kinds of questions most people ask. Then Simon made an amazing confession. He doesn’t use a condom with his girlfriend.

SIMON: I trust my girlfriend.

PAKSIMA: But how do you know that she doesn’t have HIV?

SIMON: She was too faithful.

PAKSIMA: Faithful to you?

SIMON: Yeah.

PAKSIMA: Simon has never been tested for HIV.

Tragically, the most developed nation in the continent has the highest infection rate in the world. In South Africa, 4.7 million people have HIV. Orphanages are filled to capacity.

Older kids like these four teens are raising themselves after losing their parents.

Each day, 200 HIV positive babies are born here. But there is an affordable solution to this spiraling trend: a $4 pill that can prevent the transmission of HIV from mother to child.

This tablet, an anti-retroviral, is called neverapine, and it’s at the center of the storm of controversy in South Africa. The president, Thabo Mbeki, refuses to allow government distribution of any anti-retrovirals in state hospitals, where most people go for care. He insists the drugs are toxic, unproven, and need more research.

Despite public outrage and offers from the manufacturer to provide it free for five years, Mbeki won’t budge.

Private clinics are a different story.

NURSE: We are distributing for free to every mother that agrees to be tested after voluntary counseling.

MPMUI: One of the counselors, they told me that I’m HIV.

PAKSIMA: Thomas and his mother, Mpumi, are fortunate; they went to a private clinic and got the medicine in time.

MPUMI: Yeah, everything is negative.

PAKSIMA: Today, history is being made at the Zola Clinic in Soweto, where Thomas’ mother was treated.

Jimmy Carter and Bill Gates, Sr., are joining South Africa’s most revered hero, former President Nelson Mandela, in an open challenge to Mbeki’s AIDS policies. They are campaigning to make this life-saving medication available to all south Africans.

GATES: To have a baby of a woman sitting a few feet away who acknowledged that she was infected by HIV was moving. It was terribly moving to have that child in my arms. It was really impressive.

PAKSIMA: The Gates Foundation is funding the distribution of neverapine at the clinic.

CARTER: I realize that in South Africa there is a debate ongoing about whether the mother to child treatment is effect and safe. My personal belief is that it is completely effective and safe.

NELSON MANDELA: But if the government says, “you don’t take any move in regard to public hospitals, until we have completed our research,” babies, young people are going to die in scores every day.

PAKSIMA: Mandela’s words represent an unprecedented criticism of President Mbeki. Within hours of this event, Mbeki offers to meet with the delegation.

They spent an hour confronting him on his policies and pleading with him to lift his ban — to no avail.

The Carter and Gates’ campaign is ending in Africa, but about to start at home.

GATES: The most important thing is to speak out to the government in our Congress, to our public about the importance of the U.S. stepping up, the U.S. has to step up.

CARTER: And I hope that all of us in our entourage can go back to the United States and, in the forums that involve rich countries in Europe and Canada and Japan, that we can add our voices to the clamor and demand more generosity to address this terrible problem.

PAKSIMA: These babies are one part of the solution. They have a good chance of living free of HIV because of neverapine. For now, they are the rare and lucky future of Africa.

MOYERS: The Carter-Gates trip may have made a difference in an important development in South Africa.

Their presence with Nobel Laureate Nelson Mandela could not have been lost on the country’s president, Thabo Mbeki.

Only months ago, Mbeki was denouncing anti-retroviral drugs like neverapine as toxic, and his government refused to distribute the medicine — even to victims of rape. Now, Mbeki has reversed himself.

Shortly before Mbeki’s turnabout, the Constitutional Court ordered the government to make neverapine available to pregnant women with HIV.

NARRATOR: And now a look at stories coming up on NPR radio this weekend.

KORVA COLEMAN: Hi, I’m Korva Coleman. This weekend on ALL THINGS CONSIDERED from NPR news, we’ll talk with actor Forest Whitaker about his latest movie and operatic past.

MOYERS: As the first tenured female professor at Columbia Law School, she made a name for herself challenging discrimination against women.

Twenty years later, Ruth Bader Ginsburg herself overcame the glass ceiling to become the second female appointed to the Supreme Court.

NPR’s Nina Totenberg has covered the Supreme Court for over 25 years. She talked recently with Ruth Bader Ginsburg about the issues facing the court today, as well as its long and rich history.

NINA TOTENBERG: On the walls of the Supreme Court there are paintings of men — 129 in all. There are only four portraits of women, all wives of former justices. None of this has escaped the notice of Supreme Court Justice Ruth Bader Ginsburg.

A long-time advocate for women’s rights, Justice Ginsburg recently set out to learn more about the women behind the men who served on the court. Along the way, she stumbled upon a 200-page memoir written by Malvina Harlan, wife of Justice John Harlan. He served in the years following the Civil War until 1911.

Next week, Malvina’s memoirs will be published under her designated title, SOME MEMORIES OF A LONG LIFE. Justice Ginsburg has written the forward.

GINSBURG: she is a woman of her time, and she sees her primary job, building up her husband’s career. Everything that she can do for him, she does, and yet she has a certain sense of herself.

TOTENBERG: Malvina Harlan married John Harlan when she was 17, and her mother gave her an instruction that I’d venture to say very few mothers would give today: “His interests are your interests; his home is your home; his life is your life.”

GINSBURG: “You will have no other.” Yes.

TOTENBERG: The memoir begins with Malvina, the daughter of an anti-slavery family becoming the teenage bride of John Marshall Harlan, a slave-owner.

The book moves through their marriage, the hardships of the Civil War, and Harlan’s eventual appointment to the Supreme Court, where he authored opinions that continue to influence civil rights law, even today.

GINSBURG: John Marshall Harlan is an interesting character because he starts out as a slave owner. He fights with the Union Army in the Civil War because Kentucky, although a slave state, was devoted to the Union. And in the process, becomes more and more interested in promoting the equality ideal.

TOTENBERG: In her memoir, Malvina describes her own very subtle influence on her husband. On one occasion, she even helped crack his writer’s block. In 1875, Congress passed a law banning racial discrimination in public places — from restaurants to trains. Later, the Supreme Court struck down that law.

Harlan was the lone dissenter, and was having trouble putting his argument into writing, so to give him inspiration, Malvina unearthed an old inkwell used to pen the notorious Dred Scott decision, the decision that upheld slavery. She placed the inkwell on his desk.

GINSBURG: And then she said that her husband, when he saw that inkwell and recalled the part that it had played in the retaining the shackles of slavery, she said that that made his thoughts just fly. And he wrote and he wrote, and he soon finished his dissenting opinion.

TOTENBERG: Not that the Harlans were civil rights proponents in the modern sense.

GINSBURG: It’s a portrait of the time. Now, Malvina came from an abolitionist family, but even she had attitudes that today we would regard as unthinkable. There was no question in her mind or her husband, John’s, that there was a superior race.

They believed in formal equality, but they didn’t believe in mixing of the races on the same plane in a social setting.

TOTENBERG: Even so, John Marshall Harlan’s dissents articulated the idea that the law should be colorblind, an idea eventually adopted some 75 years later.

He is famous for his dissents. Why are Supreme Court dissents important?

GINSBURG: Dissents speak to a future age. It’s not simply to say my colleagues are wrong and I would do it this way, but the greatest dissents do become court opinions.

TOTENBERG: Tell me, how do you feel when you are on the dissenting side? Are you ever angry?

GINSBURG: Not angry, but disappointed… Both disappointed and hopeful, because some of my favorite opinions are dissenting opinions. I will not live to see what becomes of them, but I… I remain hopeful.

TOTENBERG: On today’s Court, the Justices are split, 5-4, on a variety of issues, and more often than not, Justice Ginsburg is among the four.

I am wondering if today, when there are so many important decisions on this court that are decided by a 5-4 vote, I wonder if you think it harms the respect for the Court that it’s often a 5-4 decision.

GINSBURG: It shows the security that we now have in the place of the Court in the nation. Most courts abroad do not publish dissents. They don’t even indicate that there was any dissenting vote.

TOTENBERG: While Justice Harlan’s dissents are well known to history, his political career before becoming a judge is less celebrated.

GINSBURG: He ran for governor, I think, in 1871 and 1875, and then, in 1877, he got a better job; he was appointed to the Court.

But he describes these campaigns: he and his opponent would ride horseback together to the various locations where they would then debate, and they would have a debate. One day one would go first and the other would follow, and the next day it was the reverse. But they stayed at the same boarding house on the way, and sometimes they slept in the same bed.

TOTENBERG: I don’t think our politics is quite like that anymore.

Back in Malvina Harlan’s day, the Presidential election that was too close to call was not Bush vs. Gore, but Hayes vs. Tilden. The similarities are eerie. For in 1876, as in 2000, the votes in Florida were also critical and contested. In the Hayes-Tilden election, though, the winner was ultimately picked not by the Supreme Court, but by a specially appointed commission, something that Justice Ginsburg, in her vehement dissent in Bush vs. Gore, pointed out to her colleagues.

GINSBURG: It was Congress that provided for that commission.

TOTENBERG: The point being that Congress can resolve these things?

GINSBURG: It did in that instance. In fact, it provided a law that was supposed to guide similar controversies in the future, a law that provided for a decision by Congress.

TOTENBERG: You know, when Bush vs. Gore was being decided and when it was decided, there was a lot… Well, there were some very hard words in the majority, dissent, et cetera, in the footnotes to each other. And there was a great effort, then, on the on the part of some members of the Court to say, “Oh, we never disagree in bad humor.”

But why shouldn’t you disagree in bad humor? The whole rest of the country was having a bad humor about this election. Why shouldn’t you?

GINSBURG: One thing is what you read in the opinions, and that’s a lot of the Justice’s personal style.

You won’t find that kind of thing in my opinions, and maybe they make for dull reading, but I would rather just concentrate on the arguments and not have distracting denunciations of my colleagues.

Some of my colleagues who are given to spicy remarks, their opinions perhaps make more interesting reading, but whatever the tensions were that day of the Bush vs. Gore decision, we knew that we had to come together for the January sitting that was fast approaching, and that all of us really do prize this institution more than our own egos.

TOTENBERG: You know, one of the things about the Harlan memoir that’s interesting to me is she talks a lot about the work of the Court in some ways and what’s going on in the world.

There’s no discussion of capital cases at all, I assume because they were just accepted as the way. You know, capital punishment was very much a widely accepted practice in that day, and of course, it’s… the Court has ruled capital punishment to be Constitutional.

In your confirmation hearing, you said that was accepted, but I’m wondering whether those cases take a toll on you at all.

GINSBURG: They take a terrible toll, and I expect they always will. I was a judge for 13 years before my appointment to the court, but I sat on the U.S. Court of appeals for the District of Columbia Circuit. We had no death penalty in the district, and so this was a whole new experience for me.

The first time I was part of this process, it was a bloody murder. It was just a horrendous crime. But I stayed up past the hour that the execution occurred and I cried. And then I was over it, and there was the next day.

I don’t cry anymore, but I still… every time I’m part of that process, I am unsettled, unsettled by it.

TOTENBERG: And do you think all of your colleagues react that way?

GINSBURG: Probably some are satisfied that it’s the will of the people — the people want a death penalty, they’ll have it. If they don’t want it, they won’t have it — that it isn’t our job to make that decision.

TOTENBERG: You know, Justice Ginsberg, Malvina Harlan lived in a time of great peril for this country during the Civil War and the years afterwards.

One might say that this is a similar time, in some ways. And I wonder if you’ve thought at all recently about the role of the Supreme Court at a time like this, when we are improvising new ways of doing investigations, new ways of doing… handling immigrants, new ways of all kinds of things.

GINSBURG: The Chief Justice has written a book about civil liberties in wartime — civil liberties, or the lack thereof — and that book cites one example after another of how the finest minds were willing to sacrifice the liberties we hold dear in the face of a war.

Lincoln was the most notable. He suspended the writ of habeas corpus. Civilians were tried in military tribunals. But on the other side for him was the preservation of the union, and he thought that had to go before everything else. One can hope that we will learn from the history of the past.

TOTENBERG: For the most part, Malvina Harlan was only able to watch history being made. Just a few generations later, Ruth Bader Ginsburg was able to help shape it.

As a young law professor, she was among the first to challenge in court laws that discriminated against women.

When you started out, you started doing what you called gender discrimination cases. It was an idea whose time really had not come yet.

You had graduated first in your class from a prominent law school, and yet there were no big law firm jobs. There were no… there was no Supreme Court clerkships offered, but you came up with an idea that you were simply determined about.

GINSBURG: Nina, I certainly didn’t come to that alone. I had much help, and it started in the 60s. It’s a notion quite different from race discrimination.

Not a right discrimination, not of an inferior race, but as women being delicate creatures who needed to be cared for by men, who needed to be put on a pedestal.

So there were all these barriers to women doing this, that, and the other thing that were rationalized as favors to women.

Who wants to serve on juries? Women don’t have to serve on juries.

Who wants to work in a bar? We’re going to spare women from that.

All those protections were really barriers to women who said, “We should be able to choose the work that we think we’re able to do.”

TOTENBERG: As we’ve talked about, Malvina Harlan was a woman of a different era, a different role of women in American society. Do you think she would like what’s happened to the role of women?

GINSBURG: I think so. I think she would say, “Yes, that’s fine.”

MOYERS: Just a month ago we reported on the growing secrecy in government and efforts by journalists, historians, and other citizens to challenge it. Our story was focused on the Freedom of Information Act and generated more response than any we have broadcast. Your e-mails are still coming. Some were pro-freedom of information.

“I am a retired firefighter with the better part of twenty years in public service. I used the Freedom of Information Act to obtain medical records the local government was keeping from me. Those documents helped me get a disability pension that under the law I was entitled to receive. Without the freedom of information act my family would have suffered insurmountable financial consequences.” – Ross Falzone

And there was this response from Franklin B. Thomas, Jr.

“I am diametrically opposed to the executive branch’s action to limit information to the public and to Congress. They seem to forget that they govern by the consent of the people. And, I for one, do not give them my consent to shut me out.”

And many viewers spoke in support of President Bush…

“It is important that the president be able to confer with advisers, and other persons, in an atmosphere wherein all parties may be able to express themselves freely – and be able to explore situations, delineate options, and brainstorm, without the fear that such advice will be leaked out of context, as most leaks are.” -Tonywalk

And there were those who couldn’t disagree with us more…

“Finally, finally we have a responsible, no-nonsense president doing a good, no great job. Now because he’s not including the press (this includes you Mr. Moyers) in every thing he does, you cry that you’re being excluded from the party. Well, grow up. Let Mr. Bush do his job.” -Mr. Richards

I’m trying, Mr. Richards, I’m trying. But as a recovering spinmeister myself, over thirty years sober, I know what the disease of secrecy does to you. You get grandiose thoughts and begin to equate your political interest with the national interest. Take Vice President Cheney, for example. He has refused to turn over records of those secret meetings where he invited his buddies in the oil and gas business to write the administration’s new energy policy and help themselves to billions of your tax dollars. He claims it’s a matter of principle to protect executive privilege. But that’s just not right. It’s a cover up.

Thanks to lawsuits by conservative and environmental watchdogs that have forced the release of thousands of documents, we now know why President Bush reversed a campaign promise to regulate carbon dioxide. Vice President Cheney got a confidential memo from one of the biggest lobbyists in Washington, the former Chairman of the Republican National Committee, slyly referring to the regulation of carbon dioxide as ‘eco-extremism’ and asking the White House to put energy policy ahead of the environment. And look at this memo from a senior Energy Department official inviting another Washington lobbyist to send a wish list of how the administration could serve the industry. Those words on the screen are right out of the secret memo:

“If you were King, or Il Duce [a reference to the fascist dictator of Italy, Benito Mussolini], what would you include in a national policy, especially with respect to natural gas interests?”

By the way, when that memo was first released, those words had been excised… whited out. Let’s just call it co-dependency… between an industry and politicians under the influence…

That’s all for tonight. Join the debate on freedom of information and let us know what you think about this week’s stories. Go to pbs.org. For NOW, I’m Bill Moyers.

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